Thursday, 29 September 2011

"Its the Economy ... Stupid!"

I have been asked to desist from writing again about the "democratic deficit" and reforms to correct it. I have been asked to write about something else. I have a commentator who keeps on telling me that its all about "the economy ... stupid!". So I will write about the economy. This subject takes me outside my comfort zone, which revolves around the law.I must quickly admit that my limited knowledge of theoretical economics is based on an "A" Level (actually "S" level that in my days, 1969-1970 school year, was one step higher than an "A" Level) in economics and politics. My practical experience is down to closely following current affairs and to having run and helped run law firms and related businesses.

Anyway, here goes. I will argue that the politics of our economy revolves around expenditure and not around the potential other area from which Gibraltar generates its wealth for the simple reason that certain factors reduce the room within which governments can manoeuvre.

There is a tendency in Gibraltar to use the word the "economy" interchangeably to mean what is in fact the economy, meaning how wealth is generated in Gibraltar and what should be termed "government finances", meaning the monies that the government receives and spends. Undoubtedly the health of government finances is directly related to and dependent on the health of the economy. Conversely, the the need to raise public revenues combined with the knock on effect that need has on the level of direct and indirect taxation impacts on the health of the economy. The reason is simple. Gibraltar's economy, like most economies relies on its competitive edge. The competitive edge of Gibraltar's economy is reliant on fiscal leverage. In simple terms this means low direct and indirect taxes because Gibraltar has no natural resources. However, it does have some 'natural' advantages.

First is its geographical location. This helps in the main 4 sectors of our economy: ship repair, port facilities, bunkering and tourism. Other than, possibly, for port facilities much of the competitive edge on the other of these 4 sectors is achieved by fiscal leverage. Comparatively lower indirect taxes on oil makes bunkering a feasible activity. Comparatively lower indirect taxes makes Gibraltar attractive to masses of day tourists who are the core of the tourist sector. I am not sure that geographical location alone is sufficient to maintain current levels in these sectors.

Second is legislative agility. Legislative agility is a double edged sword because, just as it can be used to benefit one sector, business, company or individual, it can equally be used to detract from another. Therefore, directly tied to this advantage goes the requirement for political stability and trust. It is of utmost importance that Parliament, Government and Opposition are seen and believed to be stable and to be avoiding any whimsical or impulsive behaviour.

Appropriate behaviour is required in order to portray the stability that is needed for all sectors but, primarily, for the other two major sectors of the economy: financial services and gaming. It is, however, this legislative agility that permits Gibraltar to develop these 2 sectors by being able to speedily react to situations and external factors, thus allowing Gibraltar to become an attractive jurisdiction or retain its attractiveness as a jurisdiction. One essential requirement to ensure continued growth in these two sectors is a competitive tax environment.

What this simple analysis reveals is that it is most unlikely that new areas of economic activity will be found or can be developed. So there is little or no politics to be played out on this aspect of the economy. Gibraltar has what it has and can exploit only what it has. What our government from time to time can do is maintain the fiscal leverage and use legislative agility. What our government from time to time can do is ensure prudence in expenditure and to prioritise different areas of expenditure. It is in these two aspects of economic policy that politics can be played out by the different political parties.

Too much expenditure results in too much borrowing, which in turn gives rise to revenue commitments that become fixed. In the absence of an ability to refinance or increase borrowings, which in the present international economic crisis is likely, the demands on recurrent government revenues to service capital and interest repayments continue. It can result also in the Government's liquidity being reduced.

The cure is either to reduce expenditure, which can result in austerity measures, like those being faced by many European countries, or to increase taxation. Increased taxation will adversely affect our economy which is reliant on competitive fiscal leverage. Both are options that do not bear thinking about. Additionally, the belief, encouraged on some occasions by the Chief Minister by his pronouncements on economic growth, that the international economic crisis will not touch Gibraltar is to believe that Father Christmas exists.

Lack of money in other countries, which is one aspect of the crisis, will result in less consumer and business expenditure. It will lead to a reduced demand, at a minimum, for our tourist and finance centre and other services. In time these factors can result in reduced government revenue. This reduced economic activity could lead to a downward spiral, which has to be avoided at all cost. It can only be avoided by prudent expenditure policies.

It is important at the forthcoming election to closely look at, not only policy statements contained in manifesto relating to expenditure, but also at immediate past behaviour. It is palpably obvious that the present Government is on and has for a long time maintained a spending spree with our money. I has done so to both retain power and to see if it can recover some electoral advantage. I would suggest that this behaviour, in the present international economic climate, is irresponsible and unsustainable. What we should look for is policies that espouse prudence and are not profligate, even if this course will seem a worse political offering in the short term. Prudence will stand Gibraltar in good stead in the longer term.

We should also look at the prioritisation of expenditure on necessities and not luxuries. This means prioritising expenditure that favours the needy and disadvantaged. One measure by which a society is judged is by how well it treats its people. I urge voters to be a little selfless in how they choose the next government. If they do so they will be helping others. They will also be helping themselves, in the longer term, to maintain a standard of living that will continue to be envied.

Sunday, 25 September 2011

November Election? Some Current Considerations.

According to a story in Panorama the Chief Minister has indicated, on a Spanish Radio programme, that the election will be held before Christmas. Leaving aside the bizarreness of the Chief Minister having ignored his own constituency in Gibraltar by making this statement in Spain, this announcement will agitate more and more speculation. Speculation about who may be leaving politics, who may be standing for election, what pre-election coalitions might be formed and who might win the election. 

What is extraordinary about the whole process is that, weeks before a General Election, the electorate  do not know yet who many of the candidates will be. It just seems to me to be an oddity that political parties should consider that retaining this mystery is in any way an advantage. To me it is further proof of the deficiency in party organisations. These deficiencies contribute to reducing the effectiveness of democracy in Gibraltar. It is also another factor that further helps to propagate the belief that a General Election is an election of a Chief Minister and a Leader of the Opposition. Thus rendering the election presidential in style rather than what it should be, an election for individual representatives to Parliament. It is from amongst those elected that a Chief Minister and Government is formed. 10 votes essentially become 1 vote. 

The added reason for this effect that I term the "presidential effect" is that the combined lack of constituencies/wards and each voter having 10 votes means that no individual actually elects a single identifiable MP who can or will be his/her personal representative in Parliament. This is an added aspect of the existing system that contributes to the "democratic deficit". It is a further aspect of the present electoral system that needs to be looked at. Personal representation in Parliament needs to be improved. How? I am not presently sure, but solutions must exist. Resolving this issue will also reduce reliance on the Chief Minister to resolve individual problems. This will reduce the opportunity for deification of that office.

I do not believe that speculation of the nature that I have alluded to really helps to unravel what may happen at the forthcoming election. What does help is to analyse known factors. Let us look at some of these. First, we know that Peter Caruana will lead the GSD, Fabian Picardo will lead the GSLP and Keith Azopardi will lead the PDP. The leadership of each, meaning not the personality but how each leads his team, will be an or even the crucial deciding element for many in this election. Personality, however, cannot be totally discarded. It always plays its part.

Keith starts from the disadvantageous position of leading the least (by far) supported party. It is for this reason that the PDP needed a charismatic leader. It does not have it in Keith. Keith does not have it in him to enhance the electoral chances of the PDP. It must, consequently rely on two factors to do that. First its policies. Secondly its other candidates. On the first front the PDP's choices have narrowed because the other two parties have adopted democratic reforms as policies, which is what the PDP was majoring on. The result is that, now, the debate will be on detail of these reforms rather than the overall concept. On the second front, all we know to date is that the PDP has a full slate of candidates ... that Nick Cruz and Gigi Vasquez are likely candidates and little more on the identity of its candidature ... not very helpful. One would have thought that a party totally lacking in representation in Parliament would want to announce its candidature early in order to give its candidates as long a time as possible to create a public personae. It seems that this is not to be. There may be a game plan in that strategy but it escapes me.

Fabian, in the perception of some of the public, carries some personal baggage, but who does not? It is in the style of the GSD to pinpoint such baggage. I have doubts that it will impact sufficiently amongst most voters to undermine the GSLP/Liberal's chance of election. If the GSD dedicates its efforts to personal criticisms of Fabian, this has the disadvantage of distracting from real issues. I believe that the important debate is on issues. In this regard, whilst the GSLP/Liberal Alliance (not Fabian alone)  must not ignore personal attacks, it must rebut them robustly, it must not do so in a manner that detracts from policies and substance.

In this regard the GSLP/Liberals have made an excellent start. It has identified the "democratic deficit" issue. It has seen the GSD's failure on this front. It has stepped into a void that the GSD had no need to leave open, nor did it have the right to do so. It promised reforms and never delivered them. There are skeptics who (a) do not believe that the GSLP/Liberals are serious on reforms and (b) say that this policy will not be central to voters' decisions on who to vote for. 

On the first argument, It would be political suicide for the GSLP/Liberals not to undertake reforms having been so explicit on some e.g. freedom of information and having publicly announced its intention to reform the electoral system and Parliament following recommendations from an Independent Commission. Ignoring the Commissions report totally would also be political suicide. The process announced by the GSLP/Liberals also has the advantage that it is likely to deliver broader reforms.

On the second argument, of course there will be many other important issues and debates, but the reform one is equally or more important, certainly in the view of a large number of voters. It is also important for a completely different reason. The GSD persists with its attempts at discrediting the GSLP by constantly regurgitation the pre-1996 state of affairs but what better way to counteract the attempt to create the impression that the GSLP has not changed its spots, than to have policies that would preclude the possibility of that happening? Improved and more accountable democracy is the best check and balance to avoid a return to behaviour similar to that of those disagreeable pre-1996 days. That is not exclusively a problem attaching to the GSLP. It is something that, in the absence of systemic checks, could happen with any party in Government.

The other manner in which the electorate can be convinced that the pre-1996 image of the GSLP is finished and gone (aside from the contents of its manifesto and policies) is the standard of its candidature. One achievement is the change in leadership. Another is that most of its candidates have been in Parliament and for better or for worse are a known quantity. A third is that the standard of potential candidates so far announced is good. We have Dr Norbert Borge, Joe Cortes and George Mascarenhas who may be candidates, subject to selection. All are well respected members of the community, so long as this is the standard of candidates, such persons would not permit themselves to be in any way identified with pre-1996 style GSLP government.

What about the GSD? The massive advantage that it seems to see is that it has been in Government for 16 years and it has achieved a lot in that time. No one will deny it that. Its main achievements, however, are the reversal of the adverse image and reputation that Gibraltar had garnered before its election. However, Gibraltar will not lose its reputation ever again for similar reasons. The lesson has been learnt by all politicians in Gibraltar.

Apart form cleaning up Gibraltar's image, the reality is that the economy has been built up by the GSD on the strong foundations laid by the GSLP pre-1996 administration. This is not a criticism. It is, first, a fact and, secondly, it is necessarily so because Gibraltar's economy can only be built on opportunistically taking advantage of its limited resources: the port, its location (for tourism), size (that delimits requirements) and speed of action on fiscal and regulatory policies. The other reality is that, whilst the government has money coming in and the ability to borrow, it can spend and has the GSD spent! Let us hope that it has not been profligate to a level that the present international economic crisis will not impact badly on Gibraltar's ability to attract revenues. Otherwise in time we will realise that the GSD have bitten off more than what Gibraltar can chew.

The GSD has some electoral problems. The first is undoubtedly wastage. It will over 16 years of Government have upset individual and groups of voters. This is inevitable but makes it more important that the GSD finds other new supporters to vote for it. It will  not do so by attacking the GSLP/Liberals. It will not do so by boasting of past achievements, the electorate has these in the bag already. it will only do so by having new policies and creating a new identity. It has not done much to achieve this. The perception is that it is a party lacking in continuity and in ideas. That it is a party resting on its laurels and those laurels belong to one person: Peter Caruana. It has also failed to react to changing demographics: the passing away of older voters and the advent of the young, who will have very different views from past GSD voters. The GSD are now reacting but it may be too little too late.

Additionally the one individual Minister who can be said to have worked tirelessly to positive effect in his ministry is Daniel Feetham, may not stand at the next election. He has revised and reformed large swathes of law relating to justice. I am  not sure that in practice some of those reforms will not cause issues and too much expenditure for a small jurisdiction like Gibraltar but this is possibly an inevitable cost that we will need to face. I understand the reasons for his not standing; to be stabbed in the presence of his and other children is traumatic. That the stabbing happened because he was Minister for Justice is obvious. That his family and, probably, he feels the risk involved in public office is too great is obvious. My sadness both relates to the event that may force him to resign but also because he has done and behaved in his ministry as I consider an elected Minister should act and behave. He has innovated and held policies, fought for them (including the age of consent law, where the Supreme Court upheld his view), taken them to Parliament and enacted legislation. He has carved out an individual political character for himself to the benefit of his party, the GSD. He is the only person to have done this in the 16 years of GSD Government. The general perception is that all the rest that has been done by the GSD is down to one person: the Chief Minister. 

Therefore the forthcoming election becomes a plebiscite on the Chief Minister. I say that because he has acted in a manner that makes it that way. I hope the other party leaders do not follow suit. I would hope that what we have seen developing so far as the election approaches continues. We have seen the PDP and the GSLP/Liberals announce and debate policies. I hope it continues that way. If the GSD attempts to reduce the election to personalities, in the main, the other parties should  leave the GSD alone to get on with that tactic. I believe it is counterproductive. I believe that voters do not like it. I believe sticking to the issues and to substance will deliver more votes. The GSD may want to ponder on that suggestion too. The GSD have also made the same error as the other parties in not having announced which, if any new candidates it will present to the electorate. 

When do I think the election will be held? Well the 19th October is Gibraltar day in London, so, unless the Chief Minister compounds the error made by his statement about the election on Spanish radio, by announcing the election in London, it will be announced after that date. The election cannot be held before the Electors List is closed on the 31st October. Christmas is fast approaching that leaves only a few Thursdays on which the election can be held, namely, 24th November or the 1st, 8th or 15th December. The 8th is the Immaculate Conception, which is a Catholic Holy Day of Obligation, thus it is an unlikely date, the 15th is too close to Christmas, so we are down to two dates ; we will see.

What do I think will happen at the election? Well I do not disbelieve that so many polls will have got the result too wrong. I also believe in anecdotal evidence, namely natural wastage and demographic alterations. Change is clearly visibly in the air and the GSD are doing little to put a brake on change. All in all I would predict a GSLP/Liberals win by a small but significant margin but all say that a week in politics is a long time ...

Wednesday, 21 September 2011

The Importance of a Third Party

The recent frank interview of Keith Azopardi, leader of the PDP,  published in the Chronic raised, in my mind, a train of thought about the benefits that a "third party" brings to democracy. In the United Kingdom the Liberals have survived for scores of years without forming government, except, as now, in coalition. The question is why do third parties persevere? A related question is, do they add value to democracy? My view is that the value that a third party adds is tremendous and immeasurable. let us explore why.

Undoubtedly the main ingredient that a third party injects into the democratic process is the possibility of its election into Government or Opposition, if it presents a full slate of candidates. In this sense the description "third party" is a complete misnomer. The PDP is no less a political party and, at an election, offers voters no less than does the GSD and the GSLP/Liberal Alliance. The pejorative title "third party" is only earned or attributed to a party, usually, when it has no or a minority representation in Parliament. It is extremely possible that by electoral defeat, therefore, that either the GSD or the GSLP could one day end up as the "third party".

Frequently a "third party" will be a catalyst for innovative or different policies that the mainstream parties can and do adopt on an assessment of electoral popularity and opinion in relation to these. The most permanent and current example is electoral and parliamentary reforms. In fairness, it has been the PDP who have been constant on that issue. It has put forward concrete proposals, irrespective of whether one agrees with all or some of them or seeks more reforms. It is now that the GSD and the GSLP have been spurred into action on this subject. In this way a "third party" helps to advance wider political arguments and debate of important and relevant issues and helps to innovate.

In addition to increasing the choice for electors, a "third party" fills the vacuum that can and on occasion is left behind by the demise of a party. In the past parties in Gibraltar have disappeared only to be replaced by quickly cobbled together groupings of individuals. These groups have evolved into the semblance of being  political parties. Disorganised parties are not the best way for a democracy to function. The internal democratic machinery that acompanies a party is part of the democratic process. Albeit that such machinery is not compulsorily imposed by law, internal democratic procedures for selection of executive bodies and candidates for Parliament are an integral and important part of democracy.

The ability of the members of a party to call its leaders to account is equally so. This is more prevalent in some parties in Gibarltar than others. If internal party democratic accountability is lacking, the authority of any one individual within a party may develop to an unhealthy level. Such power within a party has wider consequences in a political system so lacking in checks and balances.

The existence of a "third party" also means that there are persons who have been engaged in the cut and thrust of politics for a period of time. They thus have experience, albeit limited because many will not have been MPs, of what it is to be in politics. Additionally their interest in politics will have led them to understand the intricacies and foibles of parliamentary procedures.Some knowledge of the political and governmental process is a must for a democratic society to continue functioning and to evolve.

A "third party" also offers the possibility of a hung Parliament. However remote this possibility may be in the existing electoral system, there would be no possibility at all were there were to be  no "third party". Just the existence of this possibility improves the democratic process because it incentivises the man stream parties to scrutinise their own policies carefully and consequently to fine tune them in the context of the policies and arguments of and stimulated by the "third party".

Additionally, a "third party" provides a home for voters disaffected with the mainstream parties. The votes gained by a "third party" evidence this disaffection and spurs on the renewal of the policies of all the parties. By offering an alternative a  "third party" also mitigates the growing "tribalism" that is prevalent in Gibraltar as between the two main parties, the GSD and the GSLP/Liberals.

All in all, my conclusion is that the PDP, in Gibraltar, should be encouraged and incentivised so that it will continue to enhance the democratic process by its very existence. I hope and trust that it will get enough support to encourage its continued existence and that it will persevere, irrespective of the election result that it achieves. The PDP have a place in Gibraltar and it is a continuing place. Just its very existence enhances the democratic process substantially and helps the evolution and maturity of Gibraltar as a political entity. I wish it well at the forthcoming election.

Sunday, 18 September 2011

Finally On the Road to Greater Democracy?

The GSLP/Liberals have been accused, during the debate in Parliament, of not being serious about democratic reform by the GSD. It has also been accused of its proposals being "wooly" by others. I disagree with this criticism. There has also been much debate about "who said it first", by which I mean who made democratic reform proposals first. I find this point puerile and irrelevant.

It is a bit rich for the GSD to make its criticism of the GSLP/Liberals when it has been so remiss in the 16 years that it has been in power on giving effect to reforms. The GSD are quick to remind everyone of events and failings of the GSLP in the 8 years preceding 1996. Before doing so, it should be self-critical of its own admitted failings on the subject of democratic reforms.

It is no excuse to say that the failings of the pre-1996 GSLP government were greater. The GSD got into power with a promise to precisely to put right the wrong that then existed in terms of the perceived oppressiveness of the GSLP administration. It was to give us open, transparent and democratic government. Its failure on this front is of huge import as it was a central promise made by the GSD to put right a wrong committed by the GSLP that was so palpable at the time. 

Additionally, harping back to the past does not bode well for the GSD in this election. It is the GSD that has been in power for 16 years. It is the GSD who will be more susceptible to criticisms of past failings that are more recent and accordingly fresher in people's minds. A campaign that promises nothing new from the GSD will also not assist to improve its electoral chances. Negative and personally critical campaigning is also destructive and so anathema to democracy.

I do not believe that it is not enough for there to be a debate about systemic changes to the democratic process. I believe that there is a need also to change attitudes in politics by making issues and not personalities the subject of any campaign. Reforms to the political system can help to enhance this aim by creating a better environment for debating issues rather than personalities. It will not work, however, without a change in attitude. This change requires the locking up at home of personal dislikes by one against another and not allowing these to take over the election arguments. The reforms will certainly not help to reduce personality based criticisms at the forthcoming election because no reforms will be enacted or were intended by any politician would be enacted by that time.

The position of each of the three main parties on reforms is now clear. The PDP have published extensive reform proposals, the GSD have forced a motion through Parliament with less extensive reforms that in my opinion are not sufficiently wide ranging. Also they have not been properly thought through. The GSLP/Liberals have published an intent to establish an independent commission to look into and recommend reforms of the electoral system and to Parliament. The breadth of the terms of reference of that independent commission are staggeringly wide. Wider than the proposals of both the GSD and the PDP.

It is impossible to justify a criticism of the GSLP/Liberals being "wooly"on this issue without implying by that same criticism a simultaneous belief that, if the GSLP/Liberals were to form government after the next election, it would not enact any reforms. Is such a criticism sustainable? I do not believe it it is. It would mean that a newly elected government would be ignoring the very central policy that it seems to be gearing up to fight the forthcoming election on. Such behaviour would be cynical and disdainful of the electorate. It would simply guarantee a new GSLP/Liberal administration an election loss at the immediately next following election, not least, because the other parties would immediately fill the gap left by that administration by its own ommission. It is for this reason that the GSLP/Liberals, also, cannot be criticised for supposedly not being serious about democratic reforms.

The important place that has been reached by Gibraltar is that democratic reforms of some sort will now happen because all the parties have put it on their agenda. The reality is that only those politicians who form a government can legislate to put these in place. The decision that has to be taken at the next election, therefore is who will  actually effect changes? Will it be a party, the GSD, that has failed to do so in breach of its promise over 16 years of government? Will it be the PDP, or will it be stymied by the impossibility of it forming government? Or will it be the GSLP/Liberals who will take advice from an independent commission before deciding what reforms to adopt and give effect to?

Oh, to those who do  not believe that there are no suitable independent minded persons in Gibraltar to form part of the independent commission, you cannot possibly then be believers in Gibraltar's ability to govern itself at all. Your criticism, to be sustainable, would need to extend to any of the judiciary, the civil service, the Ombudsman and any other tribunal or committee or authority established by law. I am not so cynical. If those critics were to be right, the whole reform debate is an irrelevance and a waste of time and Gibraltar could never aspire to self-determination.

Thursday, 15 September 2011

Blurring of the Separation of Power: Some Further Observations

Tomorrow is the Ceremonial Opening of the Legal Year. It is apt, therefore, that the theme of this blog should be on a subject with a jurisdrudential bent. Maintaining the central role of the judiciary is an essential plank of any free society and of the upholding of democratic principles. Central to the ability to do so is the separation of powers. One major element of such separation is the existence of an independent and impartial judiciary; importantly both as a substantive reality but also in terms of perception. An independent legal profession is closely connected also with the ability to access justice. It is the subject of the separation of powers that I touch on again but from a slightly different perspective.

On the 1st November 2009 the Constitution (Declaration of Compatibility) Act 2009 (the "Act") was deemed to come into effect. This Act, promoted and passed in Parliament by the GSD Government, authorised the Chief Minister or any other Minister, so authorised by the Chief Minister, to seek declarations from the Supreme Court of Gibraltar on whether any law or Bill or any part of any such instrument is within or without the provisions of the Constitution. It is my view that this Act should be repealed immediately for the reasons I will now give

I have made in the recent past several criticisms of this Act. These criticisms have been brought to mind again by a passage that I read in the late Lord Bingham's book "The Rule of Law", which was recently published by Penguin books. Lord Bingham, for non-lawyers who are unlikely to know, has been described as "... the most eminent of [the UK's]  judges...". He  was recently successively Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom. Lord Bingham's views on this subject, as contained in his book, are necessarily given from his perspective as a very senior judge. They are, in my view, the other side of the coin to the political perspective from which I made my critiicisms of the Act in Llanito World. Therefore, before I refer you to Lord Bingham's passage, I will remind the reader of the main thrust of my criticisms. These criticisms were made in the context of what has become to be known as the "gay age of consent case".

On the 28th March 2010 in my blog entitled "Age of Consent, Gay Rights and Government" ( I wrote:

"The judiciary applies laws it does not propose, sponsor or make them. It does not decide policy, that is the responsibility of governments. If a government ... seeks to hide behind the judiciary before passing what they perceive to be unpopular laws, that it has a legal obligation to pass, it is cowardice"

On the the 31st march 2010 in my blog entitled "Gay Rights, Direct Rule and a Government in Crisis?" ( I wrote:

"The compulsion to vote to end discrimination does not arise from any declaration made by the Supreme Court; that is simply a statement of existing law. It arises by the clear and unequivocal reality of the law ... The right path is not to misspend our money on a vauous crusade seeking to be told by the Supreme Court what is so widely known already."

On the 10th April 2011 in my blog entitled "Age of Consent- Sense and Independence" ( I wrote:

"One political debate revolves around the government using the courts to overcome politically sensitive debate and controversy ...This question arises because the litigation was brought to Court by the executive arm of government in the guise of the Chief Minister and the Attorney General.  ... Recourse to a judicial decision ... should only have been necessary if somone's rights had been transgressed."

Let us now look at what Lord Bingham wrote relating:

"... to a legislative proposal made in Britain in 1928 which, would if enacted, have permitted a Minister, if it appeared to him that a substantial question of law had arisen, to submit the question to the High Court, which, after hearing such parties as it thought proper, would give its opinion on the question. The proposal was the subject of a sustained attack by the judicial members of the House of Lords. The thrust of the criticism. was expressed by one judge (Lord Merrivale), who said ' it is no part of the business of Her Majesty's judges, and never has been part of their business, at any rate since the Act of Settlement, to have any advisory concern in the acts of the Administration. The vice in the proposal is not hard to see. If judges, almost certainly on hypothetical facts, advise the government that a certain course of conduct would be lawful, they disable themselves from ruling on the question in an independent and impartial way when, in due course, a litigant, on real facts, challenges the lawfulness of the conduct'."

All in all the case to repeal the Act is overwhelming. Parliament should recognise this. It should act forthwith to repeal this law. The Act only serves to compromise the sacrosanct independence and impartiallity of the judiciary, through no fault of the judiciary. Also, it blurs the lines of responsibility and the separation of powers of and between each arm of government. Further, it transfers an obligation that is that of the legislature to the judiciary. This transfer of functions is so clearly something that is intrinsically wrong.

What this Act also exemplifies is the need for a wider debate on this type of legislative proposal than that which the present make up of Parliament permits. The lack of sufficient separation of powers between the executive and the legislature, together with the abscence of a second house of Parliament, results in a narrowing of the participants in the debate. This increases the odds of legislative mistakes being made. It is not that I  advocate the creation of a second house of Parliament (god forbid!). I do continue, however, to advocate a rethink of how our Parliament is presently constituted to widen the knowledge and experience available in the legislative process and to  increase accountability.

Sunday, 11 September 2011

National Day, Self-Determination, UK and Spain

Everyone enjoyed National Day tremendously, as usual, but, whatever the GSD may believe or preach, it is a day also for political contemplation. It is this consideration that militates toward all leaders of all political parties issuing a message on that day. It is worth considering and analysing what each has said. It is then my intention to finish this blog with my own brief explanation of how I consider that  progress on the path towards the final goal, namely self-determination can be made, at this juncture after the 2006 Constitution.

The Chief Minister, in a message that is noteworthy for its brevity, emphasised the celebratory aspect of National Day, saying that it is a day on which "... we celebrate Gibraltar within our families, friends and in community." His only political allusions were to Gibraltar's successful economy with the consequent lack of social distress. He said also that "Gibraltar is politically strong because we are united on fundamental issues affecting our political rights as a people, and in our determination to see them prevail". 

The later sentence has three aspects which are significant:
  • He does not disclose exactly what, in his mind, is the issue that unites Gibraltar, so it is left to us to assume he is referring to the international status of Gibraltar. 
  • Is he referring to all political parties being united on this undefined issue? If he is, then it is not obvious from the manner in which he behaves toward other political parties and their leaders.
  • He makes no reference to decolonisation or self-determination. There again he cannot, can he? He has said that under the 2006 Constitution Gibraltar ceased to be a colony. Further that the referendum that agreed the 2006 Constitution was an act of self-determination. He can hardly go back on these, in my view inaccurate statements (as analysed in my blog " or now say that Gibraltar has not exercised its right to self-determination. The latter is especially so, as the question asked at the referendum was framed by him in terms of it being an exercise in self-determination. Or can't he? He has made comments about an Andorra solution, which indicate that even he thinks that there is some way to go on the road to self-determination.
All in all a very politically insipid message, but having backed himself into a corner by past pronouncements, it is difficult to see how he can say much more, without saying anything that would be more electorally unpopular.

I turn now to Fabian Picardo, the Leader of the Opposition's message. One thing is that it was certainly longer but not too long to deter people from reading it. He makes reference in it to the date, 10th September. It is the anniversary of the 1967 referendum. His reference is on the basis that, by this annual event, we are remembering the 1967 referendum. That cannot be so. The vote on that day in 1967 was the antithesis of both the quest for nationhood and self-determination. It was the date on which Gibraltar voted overwhelmingly to remain a British colony. It was, however, different times to now but, in my own mind, the significance of having National Day on the 10th September is not remembrance. It is that it was a significant date connected with a democratic expression of its wishes by the people of Gibraltar at that very difficult juncture in our recent history.

His most significant political comments, however, are first, that irrespective of the adoption of the 2006 Constitution there should be no diminution in the assertion of political rights as a nation and the right to self-determination. Secondly he makes an odd, and in my view gratuitous and unnecessary, reference to having  to " ... defeat those who would relish the disappearance of Gibraltar as a distinct Nation and to try to stifle our further progress in the process of decolonisation and the assertion of our rights." Gratuitous and unnecessary because, if he was referring to the UK or Spain. he should have identified them. He did not, so he must have been implicitly referring to persons in Gibraltar, specifically other political parties. I do not believe there are any such persons in significant enough numbers to merit such a comment. It is playing at divisive rather than adversarial politics. Dividing Gibraltar is not a positive way for politics to be played out in Gibraltar, irrespective of the GSD's penchant for following that course.

He then goes on to say "The clear message that we have to send to those who challenge our right to our land is that the Spanish flag will never fly over any part of our Gibraltar." This statement only serves to antagonise. It does not take our cause anywhere. It is so obvious that we need to stop repeating it. Repetition simply weakens our cause. It is clear that the present mood of Gibraltar (and likely the long term mood) is not to make any accommodation with Spain on the fundamental issue of sovereignty. The UK knows this and has given its commitment in the 2006 Constitution. Spain knows it but will not desist from pursuing its claim. It is unlikely that we will change any of these factors in the foreseeable future, nor would we want to change the UK's opinion on this point. We need to live with them for now and take advantage of and rest easy with the UK's commitment, whilst remaining vigilant and alert. What is dangerous is to join up the fight for decolonisation with the wish not to accommodate Spain's claim on sovereignty. The first has to be pursued. The latter has to be resisted. That the latter affects the first, presently, perhaps. That is a consideration that needs to be managed, not rushed and made worse with hyperbole.

Keith Azopardi, leader of the PDP suddenly seems to be tiptoeing on many issues. Why might that be? On National Day he also (as well as the Chief Minister)  emphasises the celebratory aspects. He alludes to its political importance only in terms of the past struggles for constitutional developments and as to the future in terms of "... the continuing struggle to assert our rights internationally because of Spanish opposition." Spanish opposition only? It is not opposition that we get from Spain it is an assertion of the rights conceded under the Treaty of Utrecht and a pursuit of its claim for the return of Gibraltar. I commend Keith to read the Despatch to the 2006 Constitution in which the UK precludes Gibraltar from the option of independence because of the Treaty of Utrecht. 

He also refers to the political rally forming " ... but a small part of the overall celebrations." Hence one reason for my reference to his tiptoeing. What does he say is the significance of the political rally? he suggests that it is to "... reflect on the political aspects of our sovereignty, our rights, our self-determination and our resolute wish to exist as a separate people in mutual respect with neighbouring communities." "Reflect"is a word far removed from "campaigning" or "aspiring" or "achieving" or many other, more powerful, positive and optimistic words that he could have chosen. Perhaps he needs to tread a careful path because he was one of the architects of the 2006 Constitution whilst he was a Minister in the GSD Government.

Have all of them given up on immediate progress on achieving self-determination in the foreseeable future? It seems clear to me that each of them has measured his words carefully on this issue, the Chief Minister more so than the others. It may be that this use of diplomatic or careful language on the subject of self-determination is motivated by a desire not to encourage a belief in the electorate that further progress on self-determination is round the corner. I agree that progress on overall self-determination will be slow. I said as much in the blog "The Self-Determination Delusion", to which you will find a link early on in this piece. 

I do, however, believe that there is another path to self-determination that will take us to the destination over time. It is a path that needs to avoid inflammatory statements and behaviour towards both Spain and the UK, however great the provocation might be from time to time. It is a path that requires a defined, very close and inclusive working relationship with the UK on matters of government and administration. There is no need to react adversely toward any approach or interest shown by the UK in matters of the administration of Gibraltar, especially if based on a mistaken belief that such reaction is a  sign of not being a decolonized people. All mature nations and decolonized people work in conformity and co-operation with each other, without it being a submissive colonial relationship. It only becomes so if it is done self-consciously in that belief. We should learn to act in the same mature manner as independent nations act and not self-consciously and defensively as colonised persons act, which is contrary to our interests. 

Finally my suggested path is one that requires our successive governments to strive for the highest degree of good governance and a strict adherence to the Rule of Law. What is the Rule of law? Well it is a massively complex subject. I have just finished reading a 250 page book by Lord Bingham "The Rule of Law" published by Penguin. I strongly recommend it to all. It is an easy read for both lawyers and non-lawyers. It debates interesting and topical and current subjects and the impact of those issues on the Rule of Law and of the Rule of Law on how those issues have been dealt with recently. Lord Bingham briefly (but with great depth) defines the Rule of Law  as the principle:

"... that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."

Lord Bingham's definition captures the functions of each of the Legislature, the Executive (which importantly is bound by the law and can only act under the authority of law enacted in and by Parliament, within what is permitted by the 2006 Constitution) and the Judiciary. He then explains his brief definition in great detail. 

My point is that, upon each arm of government abiding strictly by the Rule of Law in Gibraltar, the powers reserved to the UK under the 2006 Constitution to ensure good governance are incapable of use against us. The result is that de facto Gibraltar slowly advances its status as a self-governing territory. This is progress down the path of self-determination without reliance upon any third parties. Going forward in this fashion will also enhance our case immeasurably in the eyes of the international community. It will lead us to a time when self-determination for Gibraltar can and will become more acceptable amongst a greater number of nations and organisations. Gibraltar's goal will be reached in a changed international environment to which change Gibraltar will have contributed.

Wednesday, 7 September 2011

Agreement on Governmental Reforms?

So parliamentary reform is now fairly and squarely on the political agenda and set to take up some of the debate at the now imminent general election. The positive step is that now all political parties are agreed that parliamentary reforms are necessary, the PDP having been the first party to publish specific policies on this subject. Electoral reform is also on the agenda of the GSLP and the PDP. It does not form part of the GSD motion that was forced through Parliament using the Government majority. The CM has simply said, on the subject of electoral reform, that this was slipped into the GSLP amended motion. The GSD has not announced any policy on electoral reforms as yet.

The negative step is that, once again and par for the course, there is a move away from the substantive debate into the game of party political accusations and counter-accusations. Yes it is true that the GSLP voted against the GSD Government sponsored motion in Parliament. However, is it true, as the PDP has said in its press release, that this vote indicates that the GSLP do not have a commitment to the reforms? The press release further implies that there was a possibility that the size of Parliament could or would be increased before the next election. In fact a 12 month period is  given to a Select Committee of the whole Parliament to consider the content of the Motion. This timetable, is indicative, clearly, that no one intended any reforms to be in place before the forthcoming election. I do not consider that events in Parliament support, at all, the suggestion of the PDP, and indeed that of the GSD implied in the CM's reply in the debate in Parliament, that the GSLP do not have a commitment to enact parliamentary and electoral reforms. The evidence points in exactly the opposite direction. 

The GSLP have already issued press releases committing to wider reforms than just electoral and parliamentary reforms. For example it has given a commitment to enact a wide ranging Freedom of Information Act, with retrospective effect. That is indicative of an opposite intent. This opposite intent is palpable, also, from a proper and careful analysis of events (as published in the local press) in Parliament and a comparison of the motions of each of the GSD and the GSLP.

In his intervention Fabian Picardo made clear and absolute the Opposition's support for most of the GSD's motion. It is abundantly clear that reform has cross party support. So what does the GSD's motion contain? 
  • It suggests more frequent question time, well this is not a reform at all, this can be achieved immediately. 
  • It proposes parliamentary committees, again there is ample provision already to allow this to be implemented immediately. 
  • It wants more frequent meetings of Parliament to allow more opportunity for Opposition motions, well this is already in the gift of the CM. 
  • Broadcasting of meetings on TV is a further proposal, well the legislation to allow that is already in place. 
  • A review of Standing Orders, again that can be done without any legislation. 
  • it proposes an increase in the number of MPs to allow for backbenchers, who would receive a "nominal attendance allowance".
So, other than for the increase in numbers of MPs, there is really nothing to the GSD Government's proposals. It is just an admission of past procedural failings that have been used by government after government to reduce parliamentary scrutiny and accountability. This behaviour has, thus, made government more opaque for the electoral advantage of the incumbent governing party from time to time. Most can be implemented without discussion or legislative change. 

As for the increase in the number of MPs, that is something that I have advocated. I stand by that proposal but it is not that simple. Thought has to be given, for example, to how these will be elected or appointed. If appointed, what criteria would be applied and what powers would appointed persons have? Additional thought needs to be given to what rules will be applied to avoid the CM from increasing the number of "Ministers". Such action would negate the effect of having more MPs in manner that would result in an element of the separation of powers between the executive and the legislature. There is much more to consider, think about and bring into argument before a bland increase in the number of MPs would resolve the issues of accountability and transparency that need resolution.

In this context it becomes difficult to take seriously some of the pronouncements of the CM during the debate of his motion in Parliament. He variously said:
  • "We know what's wrong with this Parliament"
  • "We know what needs fixing"
  • "Who is there, out there in Gibraltar, that knows that"
  • "Who is there, out there in Gibraltar, that is not involved in politics in Gibraltar that knows even how this Parliament works, let alone how it can be fixed."
Well, leaving aside the disdain and contempt that these comments show for voters and their level of knowledge, he contradicts himself. He contradicts himself because he admitted, in that same debate, that the issue of Parliamentary reform was not a priority issue for the GSD Government. He said that it  had become one due to public debate on political websites and social media sites. Well at least those participating in those debates ( and enough have in order to cause the GSD to react) must know what is wrong, what needs fixing and how Parliament works. Otherwise why did he pay attention to public opinion and react to it? Additionally all he needs to do is listen to the many conversations constantly being had on this subject in Gibraltar. It is also worthy of note that most of what the GSD has included in its proposals are issues brought to public attention on this blog ... so at least this blogger knows a little. These statements simply evidence the self-righteousness that I highlighted in my immediately preceding blog.

A worthy exercise to determine how serious each party is on the issue of reforms is to contrast the GSD motion that was forced through Parliament with the one proposed by the GSLP. First let us contrast statements made by the Leader of the Opposition during the debate:
  • "The way that Parliament works has been shaped by people"
  • "The public in Gibraltar ... should have an influence on what we do"
  • "Reforms must bring us closer to the electorate because many people see us as remote ..."
These are democratic and inclusive pronouncements, totally the opposite of the exclusive, autocratic and dismissive (of the electorate) statements made by the CM.

Let me turn now to the motion proposed by the GSLP, its main components are:
  • It proposed the setting up of the Gibraltar Commission on Democratic and Political Reform to consider and report to Parliament on electoral and parliamentary reform.
  • This Commission would invite and consider public representations and report to Parliament within 12 months.
  • Then either Parliament or a Referendum would within 3 months decide on reforms to be implemented within 6 months.
  • Electoral reform and parliamentary reform terms of reference are drafted in the widest of terms.
These are not proposals that can be said to indicate an aversion to reform. These proposal rather indicate a desire to widen the scope of the reforms. This interpretation is especially so if taken in the context of the acceptance in Parliament by the GSLP of the need for reforms. Certainly the inclusion of consideration of electoral reforms by the GSLP do widen substantially the scope proposed in the GSD motion.

The reaction of the CM to the  Commission suggested by the GSLP is mistaken. The CM suggested that it was "a retrograde step" because Parliament should decide how to conduct its own business, otherwise its sovereignty would be diluted. This is not so. The use of Commissions by sovereign Parliaments is widespread in the UK and elsewhere. The sovereignty of Parliament remains unaffected. In the end it is Parliament that debates and decides on what the final reforms will be and then enacts laws in the form that it alone decides to give effect to its own decisions, not those of any Commission. It may be that these views coincide but the sovereign legislative process is undertaken by Parliament. The objection to the Commission in the end amounts to the same self-righteous reasoning as the belief and opinion that only those in Parliament are capable of suggesting reforms to itself. This is the same error of judgment as was made in relation to the manner in which proposals to reform the Constitution were formulated. This was done solely by a Select Committee of Parliament, rather than a Constitutional Conference of Representative Bodies together with Parliamentarians

The reaction of the PDP to the Oppositions stance is predictable but also not understandable. It betrays a desire to promote a hurried and ill-thought out increase in the number of MPs, without peripheral reforms to the electoral system or thought given to the details of how this would work. The increase in the number of MPs was never going to be achieved before the forthcoming election as the PDP suggests. It is also significant that the PDP wants this change urgently. Does it perceive it as an immediate way into Parliament? I would have thought the PDP is better off not only insisting on an increased number of MPs but also on seeking proportional representation. Also this reform in isolation from other wider reforms will not give the PDP the oversight of Government that is required. I believe patience is in the PDPs interests and in its favour.

So all in all, there has been a major and positive advance towards the reform of Parliament and towards the reform of the electoral system. The advance is only in terms that all the parties having boarded the "reform train". The destination of the train is still unknown. It is that destination that is important for democracy in Gibraltar. The Motion passed in Parliament on Monday alone is not sufficient for the GSD to persuade electors of the GSD's democratic leanings. It has been in power too long, having done nothing on that front, for the electorate to be fobbed off with so little. I am afraid that the GSD will need to do better in the election campaign but its credibility will be tainted by the paucity of that Motion. I wonder how the GSD will be able to counteract the effect of and if the GSLP roll out a programme of democratic reforms during the election. It seems to me that the GSD has lost the initiative on this issue. The initiative has been taken by the GSLP, although, in all fairness, the first and main proponents of reform have been the PDP.

Monday, 5 September 2011

Election Fervour Starts?

No one, except for the Chief Minister, can know when the election will be called. Speculation that it will be soon is rife. There are some who say that it may be called as early as Monday with the election being held on the first Thursday of October. I still think it will be a little longer before it is held. I maintain the likely dates are either the last Thursday in October or the first Thursday in November. For the CM to leave it till later is for him to reduce his options and make the date of the election too obvious. There is also little that he can now do to improve his party's chances of success at the ballot box by prolonging its present term of office.

In reality the date does not matter too much. The GSLP has started its campaign already. They are jumping into a massive political vacuum that has been, very unwisely, left by the GSD's failure. Its failure to do that which was one of the fundamental reason for the GSD's original electoral success in 1996: to deliver democratic, fair, open and transparent government. The delivery of that policy is not a subjective one but one that it should have delivered systemically and objectively. 

The failure of the GSD to deliver reforms to the electoral and parliamentary system in Gibraltar, following its promises in 1996 to introduce more open and transparent government, is unforgivable; more especially so following the implementation of the 2006 Constitution. The GSD Government has tampered around the edges of providing open and transparent government. For example, the 2006 Constitution has provisions that allow for reforms. It has enacted, for example, a Data Protection Act that includes disclosure of information provisions. These are limited both in law and more limited in practice, by reason of the restrictive (and wrong in my view) interpretation given to the exercise of his powers by the Data Protection Commissioner. The requirement to enact such legislation is an EU requirement. Therefore even the introduction of that law was not a voluntary act on the part of the GSD Government. It also, by way of example, established an Ombudsman with restrictive legal powers. Further, it has undertaken reforms of tribunals and authorities but in a manner that centralises power back to the executive, meaning, in practice, the Chief Minister. All in all a cynical, churlish and very selfish charade to give the impression that the GSD Government was providing the open and transparent government that was so central to its policies in the 1996 election, when, in reality and on careful analysis, it has not done so. 

The reality is that the GSD, despite the inclusion of the words "social" and "democrat" in its name, has proved itself to be a right of centre party with some of its elected members being much further to the right than others. It certainly has a Catholic social conscience but the Catholic leanings of some of its elected members did not permit it, initially, to change laws in conformity with its legal obligation to do so contained in the 2006 Constitution and international law. This is proven by the fracas that arose from the attempt to change the law on the age of consent for sex. The basis of the objection was on Catholic religious teachings, which are fine but it is for adherents of Catholicism to keep to them, as is the requirement not to sin.  This theology, however,  should not be imposed on the community at large by a secular government.

This self-same philosophy and ethos, is also that which has led to self-righteousness amongst some of the higher placed members of the GSD. This is the belief that they are the arbiters of right and wrong in our democracy and that it is they who subjectively deliver democracy, openness and transparency. This belief is what the history of the last century has taught us can be dangerous, leading to autocracy. Democratic, open and transparent government is not delivered subjectively. It is delivered objectively and guaranteed by systems and checks and balances that are established and need to be institutionalised. The GSD promised in 1996 to deliver to us democratic, open and transparent government. It may feel that it has done so at a subjective level. It is not for them self-righteously to judge this. It is for the electorate to do so at each election. Subjective delivery is not sufficient, even were it to be true that it has been delivered. I would argue that it has not. It was the duty of the GSD, arising from its solemn promise to the electorate, to undertake early on a reform of the electoral and parliamentary system. The aim of this reform being to deliver objective safeguards to guarantee continuous democratic, open and transparent government by all and any elected administration. The GSD has singularly failed to do so. 

The most inexplicable aspect of the GSD's bahaviour, or better still its omissions to implement systemic and objective changes to ensure open and transparent government, is that it has allowed an enormous political vacuum to develop. It is the vacuum that has been referred to, so frequently, in this blog as the "democratic deficit". This issue has now become the subject matter of a very instructive piece by Leo Olivero in a recent edition of Panorama newspaper. It is politically naive, in the extreme, for the GSD to have allowed this void to develop.

It is a vacuum that is now being filled intelligently and with honesty and vigour by the GSLP. I have reason to believe and hope that the GSLP will over the next few weeks continue to fill it as it announces its agenda for democratic cabinet government. It is such an obvious area of deficiency in democracy in Gibraltar that the GSLP has simply walked in and started to fill the political hole left by the GSD and first identified in this blog. It is too late for the GSD to do anything about this debate that is developing in the political arena. Any reforms that the GSD belatedly says it will bring about, or that it takes steps to bring about will be seen as a cynical attempt at doing too little too late and opportunistically in order only to improve its electoral chances. That the GSD has been driven reluctantly to move on its promised reforms is obvious to see. I do not believe that the electorate is so gullible. 

The argument that some important GSD supporters are propagating is that the GSLP will not actually give effect to any of the democratic policies that it is now beginning to roll out. They support this argument with the same boring historical evidence, namely, that in the last GSLP administration it did nothing to espouse such democratic policies. This argument is falacious in several respects. First Fabian Picardo is the Leader now. He has more modern and democratic credentials than Joe Bosanno, who is a true red socialist of the late 60's and 70's. Few such socialists believed in absolute democracy. They believed rather more in the left wing principles and dogma of the then trade union movement. Second the policies are being made public by the GSLP in detailed and well explained press releases. It would be truly foolish of the GSLP to believe that it could attain success at the polls at the forthcoming election only then to ignore such central policy statements whilst retaining an expectation of re-election 4 years later. 

I happen to believe that the GSLP will implement the reforms that it is announcing also because it is and has always been committed to self-determination. The 2006 Constitution is with us for a number of decades. One way to self-determination that is open to Gibraltar, for the present, is for our own government and people to maturely debate and walk a path of modern and democratic government by itself, without any need to convince the UK. We need to undertake major reforms that are possible and permissible within the 2006 Constitution. These will reduce the scope for the exercise by the UK of its extensive reserve powers under the 2006 Constitution because such a move would be so palpable anti-democratic. This path is so clear and obvious to me that I cannot conceive that the GSLP has not seen it also and that it will not follow it. As for the GSD, I am afraid it is too late for it to have any credibility on these issues. It has allowed, by not doing it itself and leaving the ground open to be filled, the GSLP to step into undertaking the very policies that it was the GSD's manifesto commitment to have implemented in the last 16 years. It has failed itself, its adherents and Gibraltar on this fundamentally important issue. 

Can I categorically predict that the the GSLP will win the next election? No, of course, like all others, I cannot. I can say two things, however, first that I get the distinct impression, from talking to people, that change is in the air. Secondly that the majority of the opinion polls predict a GSLP win. I accept that Opinion Polls do not necessarily accurately foretell the actual result of an election. I accept that the only poll that counts is the election result itself. All that said, one cannot ignore the evidence wholly. Also, the mere fact that the GSD have allowed the GSLP room to move into a policy void that was its domain is an enormous strategic error that it is too late for the GSD to redress.

Whenever the election might be, I believe that the GSD has not left itself much room for maneuvre on what will be central issues in the next election. I predict that these will be in the domestic and not the international arena. Policy on the international issue, Spain, is clear and all political parties are clear on it. The noises coming from the Spanish Government signal a failure of the GSD policy of rapprochement on practical matters. Sovereignty is not being allowed to be discussed within the tripartite forum, as the GSD proclaim that it would have liked. Domestic issues will reign at the next election. The GSD cannot rest on what it perceives to be its past economic, housing and other successes. These are in the bag and being enjoyed by the electorate already. Additionally the GSD Government has committed many errors that I have no doubt will be exploited to the full by the GSLP at the forthcoming election.

Personally, I would counsel the GSLP to run a constructive and clean campaign. after all it is the GSD that considers itself to be the clean "good boy" of politics. Does and will the GSD's behavior support this? Calling the Leader of the Opposition a liar and introducing  a Motion to be debated in our skewed Parliament indicates otherwise. Time alone will tell. but could it be that the GSD will become the bullies during the forthcoming election campaign? That would be a complete reversal of positions as perceived during the 1996 election campaign, when the GSLP were the pariahs.

Thursday, 1 September 2011

Codes of Conduct

The recent announcement by the GSLP/Liberal Alliance that it will support and promote a Ministerial code of Conduct is very welcome news. What is further welcome news is today's announcement that a GSLP/Liberal Alliance Government will introduce a Freedom of Information Act. A suggestion that was made in this blog some weeks ago. Perhaps, at long last, I will be able to get a copy of that elusive letter from the CM to the Chaiman of the FSC that led to my resignation. Certainly the announcement is that past information will also be made available. May I suggest to the CM and/or the FSC that they may wish to pre-empt that happening and let me have that letter now? I still doubt they will, gosh I feel so important to be the subject of such a majorly top secret letter. Especially as the FSC has got its policy so biased, as I have explained in an earlier blog. More about that on another day, after the next FSC meeting at which I am told the policy is going to be looked at again.

Today let me go back to the issue of conduct of politicians. I have undertaken some research on this subject. In the UK there are two codes. One applies to all MPs. The other to Ministers. They are interrelated. What has surprised me is that they are both so basic. I find it extraordinary that those who govern actually need to be told such basic and simple principles. Perhaps, it is just a reflection of the world that we live in. Despite that criticism, I have no doubt whatsoever that such codes are needed in Gibraltar, more so than in many other jurisdictions. 

Let me take you through some broad brush issues dealt with in the Code that applies to MPs. Importantly, it applies to all aspects of public life. The General Principles are: 

1. Selflessness: the public interest is paramount, including not seeking or gaining financial or other material benefits for oneself, friends and family. 

2. Integrity: they should not place themselves in a position with others that will or might influence their decisions. 

3. Objectivity: choices on making public appointments and awarding contracts should be made on merit. 

4. Accountability: including submitting to scrutiny. 

5. Openness: taking decisions and actions openly and giving reasons for these. 

6. Honesty: including declarations of interest, resolving any in manner that protects the public interest. 

7. Leadership.

In addition MPs must conduct themselves in a manner that maintains and strengthens trust and confidence in the integrity of Parliament and not in a manner that brings it or its members into disrepute. Should I at this stage remind readers of the accusations of lying made by the Chief Minister of the Leader of the Opposition, followed by a soon to be debated motion against him? How this maintains this rule of conduct completely escapes me. It smack to me of behavior in a despotic and totalitarian state. 

Turning now to the basic principles of the Ministerial code. The general principles are: 

1. Collective responsibility amongst all Ministers. 

2. Duty to account to Parliament. 

3. The provision of accurate and truthful information to Parliament. 

4. Ministers need to be open with Parliament. 

5. The requirement for civil servants to give evidence to Parliamentary Committees. 

6. Avoidance of conflicts of interest between private and public interests by Ministers. 

7. Non-acceptance of gifts by Ministers. 

8. Not to use government resources for Party political purposes. 

9. The upholding of the political impartiality of the civil service. 

I am sure I need not enlarge on where there are very apparent failures in Gibraltar. What is a concern is who will enforce any codes that may result from the GSLP/Liberal Alliance initiative? In the UK it is Parliament for the MPs code and the Prime Minister for the Ministerial code. The issue at stake in this is the sacrosanct sovereignty of Parliament (subject, in Gibraltar, to constitutional constraints because it is a subsidiary legislature, most importantly the power of the UK to ensure good governance and compliance with international obligations). If an external authority has the power then it undermines this democratically justified sovereignty. A solution is to have an appointed Independent Parliamentary Authority that at predetermined intervals, say every six months, publishes any findings, favorable or adverse, about conduct. Thereafter, it is left to public opinion to take its toll and/or the Chief Minister of the day to take remedial action to improve the chances of his or her party at the next following election. However, the solution to this question has to be carefully thought through and implemented for the benefit of democracy and good governance.